R.K.PRADHAN vs DENZONG AUTOMOBILES PVT. LTD.

THIS appeal is directed against an order passed by the District Consumer Disputes Redressal Forum, East Gangtok on 3.8.95 in C.M.C. No. 6 of 95.

THE fact of the case is that vehicle No. SK 03/0573, a Tata 608 mini truck of 1988 model, met with an accident on 16.8.91 at 9th Mile, G.N. Road, Sikkim. THE vehicle was registered with Motor Vehicle Department of Sikkim and was insured with the National Insurance Company Limited. THE validity of licence was upto 23.11.91 and the insurance coverage was upto 22.11.91. Immediately after the accident, the owner of the vehicle approached the Insurance Company which in turn asked the approved Surveyor to take necessary steps. Accordingly, assessment with respect to the damage was made by the Surveyor and accepted by the owner of the vehicle on 25.11.91. THE repair works were undertaken by Denzong Automobiles Private Limited and Rs. 26,993.25p. was actually spent towards materials and Rs. 24,390/-towards the works done including removing charges of Rs. 1,000/-. THE owner of the vehicle claimed the aforesaid amount totalling Rs. 61,383.25p. together with an additional amount of Rs. 2,500/-towards lifting and towing arrangements for the damaged vehicle. Since no payment was made by the Insurance Company, the petitioner filed a claim petition before the District Consumer Forum on 24.8.94 claiming the aforesaid amount together with interest and costs for the proceeding. The Insurance Company contested the case mainly on the ground of excessiveness of the claim. They have also challenged the claim on the ground that there was confusion about the chassis number and also about the owner of the vehicle. They have also pointed out that the vehicle was carrying articles belonging to some other organisation, in contravention of the terns of the policy.

The District Forum presided over by the President and one of the members disposed of the case on 3.8.95 awarding a sum of Rs. 63,883.22p. (Rs. 61,383.22p. as cost of materials and repair charges and Rs. 2,500.00 as lifting and towing charges). A further sum of Rs. 3,000.00 has been allowed as cost of the proceeding. No order with regard to interest on the awarded amount has been allowed as such claim was not pressed at the time of hearing of the matter.

BEING aggrieved by the aforesaid order, the Insurance Company has preferred this appeal. Here the appellant Company contended that the awarded amount has been excessive. They have also challenged the maintainability of the appeal on the ground that though the Divisional Manager and Branch Manager of the National Insurance Company were made parties in the original claim petition and though the award has been made against them, the appeal has not been preferred by any of these opposite parties but by Shri R.K. Pradhan, Branch Manager, National Insurance Company Limited. Hence, the appeal should not be entertained. With regard to the last point it may be noted that in the initial claim petition the Branch Manager of the Insurance Company was made the opposite party No. 2 and the Divisional Manager as opposite party No. 1, but the claim petition was contested by the Insurance Company through its Branch Manager. Initially Shri S. Sharma was the Branch Manager but during the pendency of the matter before the District Forum, the office of the Branch Manager was taken over by Shri R.K. Pradhan. The appeal has been preferred by Shri R.K. Pradhan, Branch Manager. In the cause title of the appeal the names of the parties cannot be Held to have been happily described but for that only this appeal cannot fail. The claim is against the National Insurance Company and the award is also against the same. Branch Manager, whoever he might be, is the principal officer of the Insurance Company and he may sue or may be sued for the Insurance Company. We cannot accept the objection raised by the respondents before us in this respect.

THE second objection is that the District Forum decided the issue without any evidence, in strict sense of the term, and because of absence of any formal evidence the decision of the District Forum must fail. In this respect the plea of the respondent is that the District Forum ought to have Held that the claim should have been preferred before a Civil Court for adjudication on proper evidence. We cannot appreciate this argument. While dealing with redressal cases, the FORA generally deal with the issues in summary way and, therefore, strict application of Evidence Act, is not possible. Moreover, the parties before the District Forum preferred to proceed with the case on the basis of the documents supplied by both the parties. We, therefore, cannot accept the objection in this respect. Question of change of number of chassis and confusion regarding ownership of the vehicle and also with respect to the question whether the goods which the lorry was carrying belonged to the owner of the vehicle or not were raised by the respondent. All these three points received due consideration by the District Forum and very properly dealt with. We find no reason to interfere with the decision of the District Forum in this respect. Now comes the question of quantum of damage to be recovered by the claimant. Excessiveness of the award is a ground of attack by the Insurance Company. We may take up the points one after another.

A sum of Rs. 3,000/-has been awarded towards cost of proceeding which continued for some time and had to be intitiated because of casual attitude of the Insurance Company in making settlement of the claim. Moreover, no interest has been made available to the claimant. On this background proceeding-cost of Rs. 3,000/-cannot be said to be excessive.

RS. 2,500/-has been awarded as lifting and towing charges. The petitioner filed a bill issued by M/s. Indian Transport Company showing actual payment of RS.2,500/-towards lifting and towing arrangements carried out for the vehicle in question. The District Forum awarded this amount in full in addition to the amount on other heads. We may find from the bill towards replacement of parts and repair works that RS. 1,000/-was included in one of such bills dated 23.12.91 towards removing charges. Moreover, RS. l,000/-is the prescribed limit under the policy and the same has been mentioned towards recovery and towing in the document ''Endorsement on Acceptance'' which was signed by both the parties. Therefore, the claimant cannot get more than RS. 1,000/-on this account. The District Forum erred in assessing the sum of RS. 2,500/-in addition to the amounts on other heads. It should be kept confined to RS.1,000/-. For the other items the claim was for Rs. 61.383.22p. The receipts dated 23.12.91 show the actual expenditure as Rs. 61,383.25p. Interestingly the repair works was done by M/s. Denzong Automobiles Private Limited which is the owner of the concerned vehicle and was also the claimant before the District Forum. However, no aspersion has been made by the Insurance Company on this score. It has been contended on behalf of the respondent that the award for the actual expenses incurred has been rightly given by the District Forum. The Insurance Company however sticks to the assessment made by the Surveyor which amounts to a total amount of Rs. 47,412/- plus the charge of F.I.P. bill and mico. A minute study of the assessment made by the Surveyor/Assessor would indicate that all the items of repair works and cost of materials as shown in the bills dated 23.12.91 submitted by the claimant had been accepted by the Surveyor in toto. The difference is on account of depreciation charges calculated on some parts. For glass materials no deduction has been made. For rubber and plastic materials 50% depreciation has been calculated and for other parts the rate of depreciation has been assessed as 25%. Deduction on account of depreciation on those two accounts is the main reason for the difference between the bill amount and the amount assessed by the Surveyor.

Depreciation on rubber and plastic materials is quite reasonable. However, 25% Depreciation with respect to the other parts appears to be quite on higher side keeping in view the age of the vehicle. In an identical case where the age of the vehicle was around two years, the Tamilnadu State Disputes Redressal Commission Held 10% Depreciation for materials other than plastic and rubber to be reasonable. A reference may be made to R. Anthony Doss''s Case reported in I (1993) CPJ 557. We also felt that 25% was too high in such a case but we are undone as the parties agreed to the rate of Depreciation of 25% on metal, on rubber and nothing on glass materials as would be evident from the ''Endorsement on Acceptance'' document executed by both the parties on 25.11.91. Therefore, the Depreciation assessed by the Surveyor is acceptable and binding on the parties. Thus the amount of damage comes to Rs. 47,419/-. We have already noted that the Surveyor indicated addition of an amount towards mico and F.I.P. Bill to the aforesaid amount of assessed damage. One of the bills dated 23.12.91, submitted by the claimant shows an expenditure of Rs. 3,500/-towards removal of fuel pump and injectors together with calibration refixation. This amount should be added to the amount of damage assessed by the Surveyor. The total thus comes to Rs. 50,919/-.

WE have already endorsed the award of Rs. 3,000/-assessed by the District Forum towards costs of the proceeding. Adding this amount to the aforesaid amounts, the total comes to Rs. 53,919/-which the claimant may be entitled to. We may recall that the accident took place on 16.8.91. ''Endorsement on Acceptance'' was made on 25.11.91 and the repair works were completed by 23.12.91. Claim towards reimbursement of the amount was made around the same time. It has passed about four and a half years but yet the compensation has not been settled. Interest, though initially claimed, was not ultimately pressed before the District Forum. We would propose that payment should be made very promptly, say within 60 days, from this date. In default the entire awarded amount should start carrying interest.

WITH the above observations the appeal is allowed in part on contest without costs. Claimant do get a total award of Rs. 53,919/-as detailed in the body of the judgment. The award of the District Forum is modified accordingly. If the entire amount of Rs. 53,919/-is not paid off within 60 days from this date the entire amount would carry an interest of 18% per annum. Appeal partly allowed.